Limits of judicial authority

CHIEF JUSTICE OF India Y. K. Sabharwal (right) hoists the national flag on Independence Day in the Supreme Court premises. The flag was hoisted for the first time at the Supreme Court this year. -

A case against the judiciary encroaching on the domains of the legislature and the executive.

"I HAVE not anywhere found in any Constitution a provision saying that the executive shall obey the legislature, nor have I found anywhere in any Constitution a provision that the executive shall obey the judiciary. Nowhere is such a provision to be found. That is because it is generally understood that the provisions of the Constitution are binding upon the different organs of the state. Consequently, it is to be presumed that those who work the Constitution, those who compose the legislature and those who compose the executive and the judiciary know their functions, their limitations and their duties. It is therefore to be expected that if the executive is honest in working the Constitution, then the executive is bound to obey the legislature without any kind of compulsory obligation laid down in the Constitution.

"Similarly, if the executive is honest in working the Constitution, it must act in accordance with the judicial decisions given by the Supreme Court. Therefore my submission is that this is a matter of one organ of the state acting within its own limitations and obeying the supremacy of the other organs of the state. In so far as the Constitution gives a supremacy to that is a matter of constitutional obligation which is implicit in the Constitution itself.

"No constitutional Government can function in any country unless any particular constitutional authority remembers the fact that its authority is limited by the Constitution and that if there is any authority created by the Constitution which has to decide between that particular authority and any other authority, then the decision of that authority shall be binding upon any other organ" (emphasis added throughout).

Dr. B.R. Ambedkar delivered this authoritative exposition, as Chairman of the Drafting Committee of the Constituent Assembly on October 14, 1949, when he was asked why the draft Constitution did not say in so many words that the President must act on the advice of the Council of Ministers. He opined that it was unnecessary to do so. Hence his remarks on the tacit assumptions on which every Constitution rests. By way of abundant caution the 44th Constitution Amendment Act, 1978 added a proviso to Article 74(1) to empower the President to ask his Ministers to reconsider their advice but also to bind him to "act in accordance with the advice tendered after such reconsideration".

One possibility Ambedkar did not mention. It was of the judiciary violating a clear text of the Constitution and encroaching on the domain of the other arms of the state, be it the executive or the legislature. The Supreme Court began embarking on this venture in the last decade, just as executive power began to weaken since 1990. It makes orders of doubtful constitutional correctness but to the relief of the citizen, because the executive or the legislature refuses to do its job. It is, however, a far cry from this for the Supreme Court to amass power unconstitutionally - for instance, on appointment of judges to itself and to the High Courts, something unheard of in any democracy at any time in history - or to the detriment of the citizen's rights, for instance on contempt of court. Far graver still and potentially subversive of the entire constitutional edifice is the Court's violation of the clear text by doing precisely what the Constitution explicitly, unambiguously says it shall not do, as, for instance, Article 122 does.

It reads thus: "(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers." There is an identical bar in respect of State legislatures (Article 212). Is there the slightest ambiguity in this? Any room for judicial intrusion in the name of "judicial creativity"? But this is exactly what the Supreme Court did, not once but twice; first in the Uttar Pradesh case and next in the Jharkhand case.

On February 24, 1998, it said: "The order which commends to us is as follows: (i) A Special Session of the Uttar Pradesh Assembly be summoned/convened for 26 February, 1998, the session commencing forenoon. (ii) The only Agenda in the Assembly would be to have a composite floor-test between the contending parties in order to see which out of the two contesting claimants of Chief Ministership has a majority in the House. (iii) It is pertinently emphasised that the proceedings in the Assembly shall be totally peaceful and disturbance, if any, caused therein would be viewed seriously. (iv) The result of the composite floor-test would be announced by the Speaker faithfully and truthfully. 2. The result is expected to be laid before us on 27 February, 1998 at 10.00 a.m. when this Bench assembles again. 3. Ancillary directions are that this order shall be treated to be a notice to all the MLAs, leaving apart the notices the Governor/Secretariat is supposed to issue. In the interregnum, no major decisions would be made by the functioning Government except attending to routine matters, not much of any consequence. 4. To come up on 27 February, 1998, as part heard Jagadambika Pal vs Union of India and Others (1999) 9 SCC 95." Two officers of the Uttar Pradesh Assembly, the Speaker and the Secretary, were subjected to the jurisdiction of the Court, which proceeded to regulate its "procedure or the conduct of business or for maintaining order". (Jagadambika Pal vs Union of India and Others (1999) 9 SCC 95. The Bench comprised Chief Justice M.M. Punchhi and Justices S.C. Agarwal and K.T. Thomas.)

Seven years later, on March 9, 2005, the Court cited this precedent and made an almost identical order in the case of the Jharkhand Assembly. Indeed, it went beyond the precedent by: (1) directing that oath be administered to the newly elected MLAs; (2) that the session convened on March 10 shall continue for the next day; (3) "there shall be no nomination in view of [sic] Article 333". An odd phrasing by the Court to direct the Governor not to nominate a member of the Anglo-Indian community to the House. Of course, no court has the power to issue such a direction to him. An illegal appointment can be quashed by the Court later by a writ of quo warrants. And (4) nor had the Court any power whatever to direct that "the floor test shall remain confined to the elected members only". The last part of the order was the only one the Court was entitled to make: "We direct the Chief Secretary and the DGP to see that all MLAs `freely, safely and securely attend the Assembly'." It pertained to order outside the House. The other four went beyond the Uttar Pradesh ruling, which itself violated the Constitution. (Anil Kumar Jha vs Union of India and Arjan Munda vs Governor of Jharkand & Ors. (2005) 3 SCC 150. The Bench comprised three Judges - Chief Justice R.C. Lahoti and Justices Y.K. Sabharwal and D.M. Dharmadikari.)

How much further will the Court go when another such case arises? The bars in Articles 122 and 212 have their counterparts in Articles 121 and 211. They bar discussion in Parliament and State legislatures on the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties (except on a motion in Parliament for impeachment of a Judge). The High Courts might well cite the two precedents and make similar orders. What if Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs) flout the bars in Articles 121 and 211 and denounce the Judges in intemperate language? Will the courts be free to issue writ to the presiding officers to restrain such conduct? Is this not a prelude to a breakdown of the kind Dr. Ambedkar hinted at? Little did the Supreme Court realise that the writ of quo warranto is available to any citizen to quash an election of a Chief Minister in violation of the Constitution. The Court went so far as to prescribe an agenda to the two Assemblies and that too as "the only agenda" (the floor test). What if an important event had occurred which merited discussion, such as a terrorist attack? It is unthinkable that any court in any parliamentary democracy would dare to prescribe an agenda to its legislatures. None has done so, either, in all these years. What if the legislatures had flouted the Court's orders? Would it have cited the Speaker and the MLAs for contempt?

Contrast this with the Court's dignified and proper response to attacks on its Judges by Union Ministers such as H.R. Bhardwaj and Z.R. Ansari in January 1986, to cite but one instance. It was over the Court's ruling in the Shah Bano case. Recently, an MLA cast grave aspersions on the integrity of Judges. On July 19, 2006, presiding over a Bench comprising Justices C.K. Thakkar and P.K. Balasubramanyan, Chief Justice Y.K. Sabharwal reacted with restraint and dignity: "We express our deepest anguish over such statements made on the floor of the House."

The Supreme Court has ignored wise dicta of judges of wisdom and erudition. In 1936, Chief Justice Stone of the United States Supreme Court said "while unconstitutional exercise of power by the executive and legislative members of the Government is subject to judicial restraint, the only checks on our own exercise of power is our sense of self-restraint", a quality totally absent in some rulings of the Supreme Court and remarks of its Judges in recent years (297 U.S. 1 at 78).

What is evident is a trend censured by Lord Diplock, a wise judicial activist, in Dupont Steels Ltd. vs Sirs (1980), 1 WLR 142 at 157: "It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequence that members of the Court, before whom the matter comes, consider to be injurious to the public interest." The Supreme Court did just that; not to a statute, but to the Constitution of India. The wise Benjamin N. Cardozo pointed out in his immortal work, The Nature of the Judicial Process: "Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment in despite of it. They have the power, though not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. None the less, by the abuse of power, they violate the law." Cardozo himself was all for judicial review: "This power of interpretation must be lodged somewhere." The Constitution sensibly "lodged it in the judges". But he was quick to point out that: "The recognition of this power and duty to shape [sic] the law in conformity with the customary morality is something far removed from the destruction of all rules and the substitution in every instance of the individual sense of justice... . That might result in a benevolent despotism if the judges were benevolent men. It would put an end to the reign of law." (The Nature of the Judicial Process; Yale University Press, 1921; pages 129 and 135.)

The Speaker of the Lok Sabha, Somnath Chatterjeee, himself on outstanding lawyer and parliamentarian, spoke in anguish in the House on March 10, 2005, after discussing the matter with leaders of various parties in both the Houses. He cited Articles 122 and 212 and said: "Today, unfortunately, because of the interim order of the Hon'ble Supreme Court, the contours of the area of supremacy of the different organs, specially of the legislature (apart from that of the executive authority under Article 361, which provides for complete immunity to the President and the Governor from being answerable to any court in the matter of discharge of their duties), have got blurred which, if not pondered over and corrective steps taken, will totally upset the fine Constitutional balance and the democratic functioning of the state as a whole. The legislatures should seriously consider the consequences of, what may be termed as, encroachment upon their authority and jurisdiction. It is necessary that the legislatures' supremacy as enshrined in the Constitution should be clearly asserted. This is a matter which should be looked into transcending all political formations and topical developments. As such, I appeal to all to consider the important issue with all seriousness and concern, so that the Constitutional balance can be and is restored. In my opinion, as has been suggested by many Hon'ble Leaders, to resolve all questions, the respected President may be requested to seek the opinion of the Hon'ble Supreme Court under Article 143 of the Constitution."

That may not be necessary. These orders by Benches of three Judges should be studied and criticised by leaders of political parties and the media and the Court should be invited in a future case to overrule what are manifestly, demonstrably unconsidered rulings.

Articles 122 and 212 were based on Sections 41 and 87 of the Government of India Act, 1935. These provisions and English cases on which they were based were well known to the framers of the Constitution. The Constituent Assembly discussed Article 122 on May 23, 1949. H.V. Kamath wanted to add the words "in any court" after the words "called in question". Ambedkar considered that unnecessary "because where can the proceedings of Parliament be questioned in a legal manner except in a court?" The bar - "shall not be questioned" - is, therefore, aimed at the courts. It is they who are barred from questioning legislative proceedings, not the media or the citizen.

The law laid down in English cases is summed up in Erskine May's Parliamentary Practice: "The right of both Houses to be sole judge of the lawfulness of their own proceedings, or to settle - and depart from - their own codes of procedure is fully established. This is equally the case whether a House is dealing with a matter which is finally decided by its sole authority, such as an order or resolution, or whether, like a bill, it is the joint concern of both Houses. This holds good even where the procedure of a House or the right of its Members or officers to take part in its proceedings depends on statute.

"The case of Bradlaugh v. Gosset in 1884 evoked an unqualified recognition by the courts of their incompetence to inquire into the internal proceedings of a House of Parliament. Question arose whether Bradlaugh had qualified himself to sit by making an affirmation instead of taking the oath. Subsequently, following re-election, he was prevented from taking the oath by order of the House. In the course of his judgment in an action seeking (inter-alia) to have the order declared void, Stephen J declared that even if the House of Commons forbade a Member to do what statute required him to do and, in order to enforce the prohibition, excluded him from the House, the court had no power to interfere, because `the House of Commons is not subject to the control of... [the] courts in its administration of that part of the statute law which has relation to its own internal proceedings... even if that interpretation should be erroneous, this court has no power to interfere with it directly or indirectly'.

"Almost a century later, a respondent before the House of Lords in 1973 argued that the promoters of a Private Bill had misled Parliament into granting certain rights to them. The House of Lords sitting judicially found that the appellant was not entitled to examine proceedings in Parliament to show that the promoters of a Private Bill, by allegedly fraudulently misleading Parliament, had caused him loss. It was for Parliament to lay down procedures for considering Bills, and to decide if they had been followed or to decide to depart from them. Parliament determined what documentary material or testimony might be required, and the extent to which parliamentary privilege should attach. `It would be impracticable and undesirable for the High Court of Justice to embark upon an inquiry concerning the effect or effectiveness of the internal procedures in the High Court of Parliament, or an inquiry whether in any particular case those procedures were effectively followed'... When in 1980 the Commons gave leave for reference to be made in court proceedings to the Official Report and to the published reports and evidence of committees without the necessity for the presentation of a petition for leave to do so, the resolution explicitly reaffirmed the status of proceedings in Parliament confirmed by article IX of the Bill of Rights."

The three-member Bench rulings in the Jharkhand and Uttar Pradesh cases are contrary to the ruling of a five-member Constitution Bench in the anti-defection law case (Kihoto Holloham vs Zuchillu (1992) Supplement (2) SCC 651). It ruled that judicial review is available only after the Speaker disqualifies a member. "Having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairman. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequences." Neither this nor any other authority was referred to in either of the two orders.

In Tej Kiran Jain vs N. Sanjiva Reddy AIR 1970 S.C. p. 1573 at 1574, Chief Justice Hidayatullah said: "Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceeding in any court. This immunity is not only complete but is as it should be. It is of the essence of parliamentary system of government that people's representatives should be free to express themselves without fear of legal consequences. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the Speaker. The courts have no say in the matter and should really have none." There are several rulings of High Courts to the same effect.

In the leading case of Bradlaugh vs Gossett (1884) 12 QBD 271, the Chief Justice Lord Coleridge said: "What is said or done within the walls of Parliament cannot be inquired into in a Court of Law. The legal question which this statement of the case appears to me to raise for our decision is this: Suppose that the House of Commons forbids one of its members to do that which an Act of Parliament requires him to do, and, in order to enforce its prohibition, directs its executive officer to exclude him from the House by force if necessary, is such an order one which we can declare to be void and restrain the executive officer of the House from carrying out? In my opinion, we have no such power. I think that the House of Commons is not subject to the control of Her Majesty's Courts in its administration of that part of the statute-law which has relation to its own internal proceedings and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable."

Justice Stephen put it very well: "We ought not to try to make new laws, under the pretence of declaring the existing law. But I must add that this is not a case in which I at least feel tempted to do so. It seems to me that, if we were to attempt to erect ourselves into a Court of Appeal from the House of Commons, we should consult neither the public interest, nor the interests of Parliament and the Constitution, nor our own dignity. We should provoke a conflict between the House of Commons and this Court, which in itself would be a great evil; and, even upon the most improbable supposition of their acquiescence in our adverse decision, an appeal would lie from that decision to the Court of Appeal, and thence to the House of Lords, which would thus become the judge in the last resort of the powers and privileges of the House of Commons." Every word of this wise caution applies to the Supreme Court's rulings.

A conflict with Parliament and State legislatures is precisely what the six Judges of the Supreme Court, comprising the three-member Bench in each case, "provoked", and provoked without study of the law or reflection of the consequences of their orders. What if the Speakers and/or the legislators had flouted the Court's orders? Could the Court have sent them to jail? The government in power might have refused to execute such an order. Would the Chief Minister and other Ministers also be sent to jail for contempt? And who would have executed that order?

It is time the Supreme Court pauses and reflects on orders of this kind. The Court should not suffer from self-inflicted wounds. If this trend continues, we might well be faced with a painful decision: Are we bound by a ruling of the Supreme Court which flouts the Constitution manifestly, demonstrably, either consciously or in utter disregard for the law? It would be a breakdown of the Constitution all round - by actions of the Court as well as of the citizen - a breakdown as grave as if the government brazenly refuses to carry out the Court's orders.

Likewise, another question brooks no evasion either: What kind of a judicial culture, judicial outlook or judicial mindset is it which has driven Judges of our Supreme Court, again and again, to make orders no court in any other democracy has ever made in history? To cite two examples - appointments of Judges to the Court itself and to the High Courts and orders to legislatures on how they should conduct their business.